Ex Parte Kirkdoffer

Patent Trial and Appeal Board

Jan 18, 2019

14463945 (P.T.A.B. Jan. 18, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO.
14/463,945
62439 7590
SINORICA, LLC
20251 Century Blvd.
Suite 140
FILING DATE
08/20/2014
01/23/2019
Germantown, MD 20874
FIRST NAMED INVENTOR
Kellie Foster Kirkdoffer
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www .uspto.gov
ATTORNEY DOCKET NO. CONFIRMATION NO.
TUP20112 4658
EXAMINER
JAMIALAHMADI, MAJID
ART UNIT PAPER NUMBER
3771
NOTIFICATION DATE DELIVERY MODE
01/23/2019 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
SINORICA@GMAIL.COM
sinorica@outlook.com
pair@sinorica.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KELLIE FOSTER KIRKDOFFER
Appeal2018-001974
Application 14/463,945
Technology Center 3700
Before JEREMY M. PLENZLER, LEE L. STEPINA, and
SEAN P. O'HANLON, Administrative Patent Judges.
PLENZLER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant seeks our review under 35 U.S.C. § 134(a) of the
Examiner's Decision rejecting claims 1-19. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
Appeal2018-001974
Application 14/463,945
CLAIMED SUBJECT MATTER
Claims 1, 11, and 16 are independent, with claims 2-10, 12-15, and
17-19 depending from claim 1, 11, or 16. Claims 1-5 are reproduced
below:
1. A pygmy goat and small livestock birthing aid
comprises:
a flexible cable;
a single cable clamp;
an at least one flexible sleeve;
the flexible cable comprises a first end, a first handle
portion, a first intermediate portion, a loop portion, a second
end, a second handle portion, and a second intermediate
portion;
the first end, the first handle portion, the first
intermediate portion, the loop portion, the second intermediate
portion, the second handle portion, and the second end being
sequentially formed along the flexible cable;
the first intermediate portion and the second intermediate
portion being slideably positioned within the at least one
flexible sleeve;
the loop portion being positioned adjacent to the at least
one flexible sleeve;
the first handle portion and the second handle portion
being positioned adjacent to the at least one flexible sleeve,
opposite to the loop portion; and
the first end and the second end are two separate and
opposite ends of the flexible cable, the two separate and
opposite ends being bound to each other by the single cable
clamp, such that the first end, the first handle portion, the first
intermediate portion, the loop portion, the second intermediate
portion, the second handle portion, the second end and the
single cable clamp keep the flexible cable in a loop
configuration.
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Application 14/463,945
2. The pygmy goat and small livestock birthing aid as
claimed in claim 1 comprises:
the at least one flexible sleeve comprises a first sleeve
and a second sleeve;
the first intermediate portion being slideably positioned
within the first sleeve;
the second intermediate portion being slideably
positioned within the second sleeve; and
the first sleeve being tangentially and adjacently
connected along the second sleeve.
3. The pygmy goat and small livestock birthing aid as
claimed in claim 2 comprises:
a proximal collar;
a distal collar;
the first sleeve and the second sleeve tightly encircled by
the proximal collar and the distal collar; and
the proximal collar and the distal collar being positioned
opposite to each other along the at least one flexible sleeve.
4. The pygmy goat and small livestock birthing aid as
claimed in claim 3, wherein the proximal collar and the distal
collar are a pair of long clear shrink tubing.
5. The pygmy goat and small livestock birthing aid as
claimed in claim 1, wherein the at least one flexible sleeve is
made of polyethylene.
REJECTIONS
1. Claim 1 is rejected under 35 U.S.C. § 102(a)(l) as anticipated by
Steinman (US 3,988,850, issued Nov. 2, 1976).
2. Claims 1, 2, 5, 7-11, 13, and 14 are rejected under 35 U.S.C. § 103
as being unpatentable over Murray (US 2,709,438, issued May 31, 1955)
and Steinman.
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Application 14/463,945
3. Claims 2--4, 11, 12, 15, 16, 18, and 19 are rejected under 35 U.S.C.
§ 103 as being unpatentable over Murray, Steinman, and Kuwayama (US
6,449,810 Bl, issued Sept. 17, 2002).
4. Claims 6 and 13 are rejected under 35 U.S.C. § 103 as being
unpatentable over Murray, Steinman, and Bailhe (US 2,561,487, issued July
24, 1951).
5. Claim 17 is rejected under 35 U.S.C. § 103 as being unpatentable
over Murray, Steinman, Kuwayama, and Bailhe.
OPINION
Anticipation by Steinman
The Examiner finds that Steinman discloses each limitation recited in
claim 1. Final Act. 2--4. Appellant acknowledges the rejection (Appeal Br.
2), but offers no argument contesting that rejection (see id. at 8-17).
Our rules clearly state that Appellant's "arguments shall explain why
the examiner erred as to each ground of rejection contested by appellant."
See 37 C.F.R. § 4I.37(c)(l)(iv). "When the appellant fails to contest a
ground of rejection to the Board ... the PTO may affirm the rejection of the
group of claims that the examiner rejected on that ground without
considering the merits of those rejections." Hyatt v. Dudas, 551 F.3d 1307,
1314 (Fed. Cir. 2008). Accordingly, because there is no assertion of error by
Appellant, we summarily affirm the Examiner's rejection of claim 1.
Obviousness over Murray and Steinman
The Examiner determines that claims 1, 2, 5, 7-11, 13, and 14 are
unpatentable over Murray and Steinman. Final Act. 5-10. Appellant
disputes only the rejection of claims 5, 8, and 9. Appeal Br. 15-16.
Accordingly, because there is no assertion of error by Appellant, we
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Appeal2018-001974
Application 14/463,945
summarily affirm the Examiner's rejection of claims 1, 2, 7, 10, 11, 13, and
14.
Claim 5 depends from claim 1 and recites that "the at least one
flexible sleeve is made of polyethylene." Claim 8 ultimately depends from
claim 1 and recites that "the handle sleeve is made of polyvinyl chloride."
Claim 9 depends from claim 1 and recites that "the flexible cable is a clear
vinyl coated galvanized cable." The Examiner acknowledges that none of
the cited references teach the features recited in these claims. Final Act. 8.
The Examiner determines, however, that the addition of these features would
have been obvious because "it has been held to be within the general skill of
a worker in the art to select a known material on the basis of its suitability
for the intended use as a matter of obvious design choice." Id. (citing In re
Leshin, 125 F.2d 416 (CCPA 1960)).
that
Appellant disputes the Examiner's reasoning, explaining, for example,
based on page 4 lines 5-8 and 10-13 of the specification, the
flexible cable 1 is a clear vinyl coated galvanized cable in order
to provide a gentle and soft interface with the user and the
newborn to be maneuvered, . . . the handle sleeve 6 is made of
polyvinyl chloride for comfort and ease of use for the user when
applying tension to the flexible cable 1, and the at least one
flexible sleeve 3 is made of polyethylene such that the flexible
cable 1 is easily slid through the flexible sleeve 3.
Appeal Br. 16. The Examiner responds by reiterating the conclusary design
choice reasoning asserted in the Final Action. Ans. 5-6.
Appellant has the better position. The Examiner has not established
sufficiently that it would have been obvious to incorporate the recited
materials into Murray's device. Leshin does not stand for the proposition
that every claim feature involving a selection of materials is per se obvious.
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Application 14/463,945
The Examiner has failed to provide any reason, beyond asserting design
choice, generally, why it would have been obvious to modify Murray's
device to include the recited materials.
Accordingly, we do not sustain the Examiner's decision to reject
claims 5, 8, and 9.
Obviousness over Murray, Steinman, and Kuwayama
The Examiner determines that claims 2--4, 11, 12, 15, 16, 18, and 19
would have been obvious over Murray, Steinman, and Kuwayama. Final
Act. 10-19. Appellant does not contest the rejection of claims 2 and 11. 1
See Appeal Br. 8-17. Accordingly, because there is no assertion of error by
Appellant, we summarily affirm the Examiner's rejection of claims 2 and 11.
Claims 3, 12, 15, and 16 each at least require a "flexible sleeve," a
"proximal collar," and a "distal collar," with "the proximal collar and the
distal collar being positioned opposite to each other along the at least one
flexible sleeve." The Examiner finds that Kuwayama teaches these features,
and proposes modifying Murray's device accordingly. Final Act. 11-18.
Appellant draws our attention to the Examiner's findings concerning
Kuwayama. See, e.g., Appeal Br. 11 ( arguing that elastic rings 24, 26 are
not positioned opposite one another along first and second body portions 34,
3 6). The Examiner responds that "[ A Jppellant mistakenly refers the first
sleeve of Kuwayama as reference number 34, second sleeve as reference
number 36, proximal collar as reference number 24 and distal collar as
reference number 26," but in the Final Action "the first sleeve of Kuwayama
is referred as reference number 24, second sleeve referred as reference
1 Although Appellant also does not address claim 18 specifically, that claim
depends from claim 16.
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Application 14/463,945
number 26, proximal collar referred as reference number 16 and distal collar
referred as reference number 14." Ans. 5; see also, e.g., Final Act. 11.
Kuwayama is directed to "a stopper for accessories for tightening
accessory chains or string elements, especially such as necklaces, bracelets
and the like." Kuwayama, 1:5-7. Figures 7 and 8 of Kuwayama illustrate
ring-like elastic elements 24, 26, and first and second decoration side
portions 14, 16, and are reproduced below for reference.
FIG.7 FIG.8
,~~~;;~;; 26
26A
20
Figure 7 illustrates "a fractional diagonal view of the accessory-chain/string
element stopper element" and Figure 8 illustrates "an overall diagonal view
of the accessory-chain/string element stopper element" shown in Figure 7.
Id. at 2:23-28.
One problem with the Examiner's findings is that the claims require
"the proximal collar and the distal collar being positioned opposite to each
other along the at least one flexible sleeve." As the Examiner made clear,
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Application 14/463,945
neither first body portion 34 nor second body portion 3 6 is considered as
corresponding to the "at least one flexible sleeve" recited in the claims, it is
ring-like elastic elements 24, 26. See Ans. 5 ("Nowhere in the Final Office
Action does it indicate the first sleeve of Kuwayama being reference number
34[ or] second sleeve as reference number 36."). Neither end portion at
reference numeral 14 or 16 is positioned anywhere along ring-like elastic
element 24 or 26. Rather, ring-like elastic elements 24, 26 are located
between the end portions at reference numerals 14, 16. For at least this
reason, the rejection of claims 3, 12, 15, and 16 fails.
Claim 4 depends from claim 3, claim 18 depends from claim 16, and
claim 19 depends from claim 18. The rejections of those claims suffer from
at least the same deficiencies discussed above relative to the claims from
which they depend.
For the reasons set forth above, we do not sustain the Examiner's
decision to reject claims 3, 4, 12, 15, 16, 18, and 19.
Obviousness over Murray, Steinman, and Bailhe
The Examiner determines that claims 6 and 13 are unpatentable over
Murray, Steinman, and Kuwayama. Final Act. 19-20. Claim 6 depends
from claim 1 and claim 13 depends from claim 11. Appellant does not
contest the rejection of those claims. See Appeal Br. 8-17. Accordingly,
because there is no assertion of error by Appellant, we summarily affirm the
Examiner's rejection of claims 6 and 13.
Obviousness over Murray, Steinman, Kuwayama, and Bailhe
The Examiner determines that claim 17 is unpatentable over Murray,
Steinman, Kuwayama, and Bailhe. Final Act. 20. Claim 17 depends from
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Application 14/463,945
claim 16. The stated basis for the rejection of claim 17 does not cure the
deficiencies explained above with respect to the rejection of claim 16.
Accordingly, we do not sustain the Examiner's decision to reject
claim 17.
DECISION
We AFFIRM the Examiner's decision to reject claims 1, 2, 6, 7, 10,
11, 13, and 14.
We REVERSE the Examiner's decision to reject claims 3-5, 8, 9, 12,
and 15-19.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED-IN-PART
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